Knee v. Baltimore City Pass. Ry. Co.

• Citation: 40 A. 890,87 Md. 623
• Parties: KNEE v. BALTIMORE CITY PASS. RY. CO.
• Decision Date: 28 June 1898
• Court: Court of Appeals of Maryland

40 A. 890

87 Md. 623

KNEE v. BALTIMORE CITY PASS. RY. CO.

Court of Appeals of Maryland

June 28, 1898

Appeal from superior court of Baltimore city.

Action by John Knee against the Baltimore City Passenger Railway Company. A judgment for plaintiff having been reversed, and a new trial ordered, with costs to defendant (34 A. 252), all proceedings were ordered to be stayed until payment thereof and plaintiff appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, BOYD ROBERTS, and PEARCE, JJ.

S. S Field and E. Swinney, for appellant. A. W. Machen and Wm. S. Bryan, Jr., for appellee.

PEARCE J.

The appellant, having been injured, as he alleged, by the negligence of the appellee, brought suit in the superior court of Baltimore city, and obtained judgment for $800, which on appeal to this court was reversed, with costs, for error in the admission of testimony, and a new trial was awarded; the case being reported in 83 Md. 77, 34 A. 252. Section 68 of article 75 of the Code of Public General Laws is as follows: "The court in which an action shall be, after a new trial has been ordered by the court of appeals, or by that court, shall have power to stay all further proceedings in such action, until all, or any of the costs, adjudged by the court of appeals, or by that court, shall have been paid by the party adjudged to pay the same." After the case was remanded to the superior court the appellee prayed an order requiring the appellant to pay the costs of the appeal and of the former trial, amounting to $139.75, and directing that all further proceedings be stayed until said costs should be paid. The court passed such order, and from that order this appeal is taken. The exercise of the power thus conferred being discretionary with the court, no appeal would lie if the validity of this provision of the Code were not drawn in question; but the appellant contends that this provision violates article 15, § 6, of the constitution, which guaranties the right of trial by jury of all issues of fact, as well as article 19 of the declaration of rights, which declares that "every man, for any injury done him, in person, or property, ought to have justice and right, freely, without sale"; and this contention we will now consider.

The first mention in the fundamental law of the state of the right to trial by jury is in article 5 of the declaration of rights, which says, "The inhabitants of Maryland are entitled to the common-law of England, and the trial by jury, according to the course of that law." Language of similar import is found in the constitution of each of the United States; and the authorities are therefore naturally uniform to the effect that it is the historical trial by jury, as it existed when the constitution of the state was first adopted, to which the inhabitants of each state are entitled, and whatever nature of regulations or restrictions of that right existed in practice at that day it has ever since been lawful to maintain, and now is lawful to establish. The precise question here presented has never been decided in this state, but the decisions of this court in analogous cases are, we think, persuasive of the validity of the act under consideration. The constitution of Maryland provides that no law shall be enacted authorizing private property to be taken for public use without just compensation--as agreed upon between the parties, or awarded by a jury--being first paid or tendered to the party entitled thereto; and in Steuart v. Mayor, etc., 7 Md. 500, where the provision was considered, this court held that: "As the law secured a trial by jury on appeal, it is no violation of a constitutional provision guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper, can have his case decided by a jury before it is finally settled." In such primary trial, costs are incurred, which must abide the final result on appeal, and which, to that extent, constitute an additional burden affixed to the right of trial by jury; but that does not afford a test of the validity of the act. In deciding the case in 7 Md. 500, Judge Eccleston cites with approval the case of Beers v. Beers, 4 Conn. 535, where a provision of the constitution guarantying right of trial by jury was held not to be violated by an act giving jurisdiction to justices of the peace, but with an appeal, provided bond be given. In that case the chief justice said: "No such unreasonable hardship is put on the appellant, by the bond required for the prosecution of the appeal, as to justify the assertion that the right of trial by jury is in any manner impaired. *** It could never be the intention of the constitution to tie up the hands of the legislature so that no regulation, even, of the right of trial by jury could be made. It is sufficient, and within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes, and even be rendered more expensive, if the public interest demands such alteration." In Haney v. Marshall, 9 Md. 209, it was objected that the act of 1801, which required a plaintiff moving out of the state after the institution of suit to give security for costs, was in violation of that provision of the constitution of the United States which secures to citizens of each state all the privileges and immunities of citizens in the several states. The court said the act had been recognized by the profession, both on the bench and at the bar, for half a century, as a valid law,--its constitutionality never before having been questioned,--and that they were not disposed to declare it a nullity, and in aid of that decision referred to the rules of the circuit court for the United States for the district of Maryland, which adopted the principle of that act. This was in 1856, and nearly another half century passed before the question was again raised, in Holt v. Railroad Co., 81 Md. 219, 31 A. 809,

in the case of a nonresident, and upon the same ground, where Judge Fowler, delivering the opinion, declared the court to be equally unwilling at that day to interfere with its operation by pronouncing it unconstitutional and void.

We have only been referred to one other Maryland case to sustain the act in question, and that will be mentioned hereafter; but there are numerous cases elsewhere which afford strong support, some of which we will mention. In Weston v. Withers, 2 Term R. 511, a plaintiff who had been nonsuited in an action of trespass for taking his goods brought a second action for the same cause; and although he sued in forma pauperis (being a prisoner in the king's bench) the court made absolute a rule to stay proceedings till the costs of the former action were paid. In Perkins v. Hinman, 19 Johns. 228, plaintiff had been nonsuited in an action on a promissory note, and brought a second action; and the court adopted the rule of the court of king's bench, and stayed proceedings till the costs of the former suit were paid. In Robinson v. Transportation Co., 16 R.I. 217, 14 A. 860, the same rule was enforced; the court saying that "the authorities show it is the practice at common law for the higher courts, where the plaintiff in a pending action has been nonsuited on the merits in a previous action for the same cause, to stay proceedings till the costs of the former suit are paid." In Sooy v. McKean, 9 N. J. Law, 88, it is said: "The stay of proceedings in a second action until the costs of a former are paid is founded on sound and just principles. The practice first fully obtained in the action of ejectment. Its extension for a time was questioned, but the policy and propriety of extending it to other actions did not long remain in doubt. For a time, also, it was questioned whether the proceedings would be stayed unless in the first action the merits had been examined and decided, either by nonsuit or verdict, but sound reason prevailed over this difficulty." The rule was recognized in Maryland at an early day, in Bull's Lessee v. Sheredine, 1 Har. & J. 206, which was an action of ejectment.

This common-law practice, antedating our constitution and declaration of rights, led naturally, and almost inevitably as the field of litigation widened, to the enactment of statutes such as that now before us, having for their object the just regulation of the right of trial by jury. Such statutes from time to time have been assailed by the independent and aggressive thinkers of the profession, and it is gratifying to note with what sound and wise discrimination, in the main, the courts have dealt with the subject; always preserving unimpaired the ultimate historical right as it existed at the time of our separation from the mother country, while sustaining all reasonable regulations of the exercise of that right made in the interest of the general public. Thus, the payment of jury fees, in states where such payment is required by statute as a condition to a jury trial, has been vigorously attacked as affixing an unconstitutional burden to this right, but the decisions have almost uniformly sustained the statutes. It was so held in Randall v. Kehlor, 60 Me. 37, where the act provided that the party demanding a jury trial shall pay the jury fee, and tax the same in the costs if he prevail; the court saying: "In cases tried before justices of the peace, the defendant, when unsuccessful and appealing, is required to advance the jury fee; and this has never been held an infringement on his constitutional right to a trial by jury. The argument of inability to pay is alike applicable to the plaintiff as to the defendant, and the hardship is no greater on one than on the other." In ...